As the marijuana legalization and decriminalization trend continues throughout states across the nation (including with recent April 2022 action by the U.S. House of Representatives), now is a good time for all employers to review and update your drug testing policies.
In states such as Arizona, who passage of Proposition 207 took place in November 2020, the sale, possession, and use of certain amounts of marijuana is legal, but the Responsible Adult Use of Marijuana Act states employers must not tolerate any of the conduct (or employee impairment) in the workplace, and it doesn’t give recreational users any employment protections.
State legislation does provide certain job-related protections for cardholders, but it also doesn’t require employers to allow workplace use or possession of marijuana or employee impairment on duty.
To Test or Not to Test?
Most private-sector employers in legalized states have a choice about whether and under what circumstances to administer drug tests. Common reasons for testing employees include:
- Reasonably suspecting an employee is impaired while on duty
- Investigating on-the-job injuries and accidents
A practical consideration is whether to require testing of applicants and, if so, whether to test for marijuana. In today’s tight labor market, excluding applicants for pot usage may adversely affect your ability to recruit otherwise qualified workers. Employers also must consider that, except for safety-sensitive positions, a positive test for marijuana metabolites can’t be used by itself to reject an applicant who is a registered qualifying medical marijuana patient.
Updating Testing Policies
Employers conducting drug tests should strongly consider adopting a policy that complies with their state’s designated drug testing statute. Compliance isn’t mandatory, but the measure does provide several valuable protections from litigation based on test results and related actions.
For example, in Arizona the statute requires the following 10 elements in a drug testing policy:
- Statement of the employer’s policy for drug and alcohol use by employees;
- Description of the current or prospective employees who are subject to testing;
- Circumstances under which testing may be required;
- Substances for which testing may be required;
- Description of the testing methods and collection procedures to be used;
- Consequences of a refusal to participate in the testing;
- Any adverse personnel action that may be taken based on testing procedure or results;
- Employee’s right to obtain the written test results;
- Employee’s right to explain a positive test result in a confidential setting; and
- Statement of the employer’s policy regarding confidentiality of the test results.
There are also requirements related to the scheduling of the tests, their costs, transportation, and other substantive topics, so it’s important to review the full statute when crafting a policy.
The policy must apply to all compensated employees and be shared in the same way you distribute other personnel policies (such as in a handbook or a posted notice). Prospective employees also must be notified of any testing requirement.
The statute outlines your right to take disciplinary or rehabilitative action based on an applicant’s or employee’s positive test or refusal to provide a sample. Thus, written policies should make clear that refusing to take a required test is a violation of the policy, and any alteration, dilution, or substitution of a sample is considered a form of “refusal” that also is prohibited. Prudent employers will provide for a range of potential disciplinary actions, up to and including termination.
An employer with a compliant testing policy and program acting on a good-faith belief that an employee used or possessed a drug during work hours or was impaired on the job will have a defense to state law claims that otherwise might be filed by a disaffected applicant or employee.
The statute also provides you with wide discretion to:
- Designate certain jobs as safety-sensitive
- Exclude individuals from the jobs based on your good-faith belief they’re using a drug that could cause impairment or diminish their job performance or ability
Your good-faith belief may be based on test results as well as other factors, such as “observed conduct, behavior or appearance,” “written, electronic or verbal statements,” “lawful video surveillance,” or a catch-all for “other information reasonably believed to be reliable or accurate.” Given the flexibility, you should be able to meet the good-faith standard in most situations.